No. 14-377
In the
Supreme Court of the United States
_________________
STEWART & JASPER ORCHARDS, a California
corporation; ARROYO FARMS, LLC, a California
limited liability company; and KING PISTACHIO
GROVE, a California limited partnership,
Petitioners,
v.
SALLY JEWELL, Secretary of the Interior, et al.,
Respondents.
__________________
On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
__________________
Amicus Curiae of Brief of the
AMERICAN CIVIL RIGHTS UNION
In Support of
PETITION FOR WRIT OF CERTIORARI
__________________
Peter J. Ferrara
Counsel of Record
American Civil Rights Union
20594 Woodmere Court
Sterling, VA 20165
703-582-8466
peterferrara@msn.com
Counsel for Amicus Curiae
American Civil Rights Union
1
INTEREST OF THE AMICUS CURIAE1
The American Civil Rights Union is a nonpartisan, non-profit, 501(c)(3), legal/educational
policy organization dedicated to defending all of our
constitutional rights, not just those that might be
politically correct or fit a particular ideology. It was
founded in 1998 by long time policy advisor to
President Reagan, and the architect of modern
welfare reform, Robert B. Carleson. Carleson served
as President Reagan’s chief domestic policy advisor on
federalism, and originated the concept of ending the
federal entitlement to welfare by giving the
responsibility for those programs to the states
through finite block grants. Since its founding, the
ACRU has filed amicus curiae briefs on constitutional
law issues in cases nationwide.
Those setting the organization’s policy as members
of the Policy Board are former U.S. Attorney General,
Edwin Meese III; former Assistant Attorney General
for Civil Rights, William Bradford Reynolds; former
Assistant Attorney General for the Office of Legal
Counsel, Charles J. Cooper; John M. Olin
Distinguished Professor of Economics at George
Mason University, Walter E. Williams; former
Ambassador Curtin Winsor, Jr.; former Assistant
1
Peter J. Ferrara authored this brief for the American Civil
Rights Union (ACRU). No counsel for either party authored the
brief in whole or in part and no one apart from the ACRU made
a monetary contribution to the preparation or submission of this
brief. All parties were timely notified and have consented to the
filing of this brief.
2
Attorney General for Justice Programs, Richard
Bender Abell and former Ohio Secretary of State J.
Kenneth Blackwell.
This case is of interest to the ACRU because we are
concerned that America be governed under a reasoned rule
of law.
STATEMENT OF THE CASE
California’s San Joaquin Valley, and the more extended
Central Valley, contain some of the most fertile and
agriculturally productive land on the planet. Appendix
(App.) at A-17. The bountiful harvests from that land help
feed people across America and around the world.
Agricultural operation of the land is a central pillar of the
economy of California, and is one of the jewels of the
American economy.
That agricultural operation employs millions of
Americans, in California and derivatively across the entire
nation. That includes many from disadvantaged families,
for whom the available agricultural work is a lifeline of
hope. It includes many others who have built up serious
business enterprises over several generations of hard work
and major investment capital.
Federal and state taxpayers have also invested billions
over the years in the construction and operation of the
Central Valley Project and the State Water Project,
including over twenty dams and reservoirs and hundreds
3
of miles of aqueducts. App. at A-18 – A-19. Those projects
provide irrigation water to the farms of the San Joaquin
and Central Valleys. That reflects bipartisan judgment
over many years of the crucial importance of these
agricultural lands.
Does the law really preclude any further inquiry into
whether there is reasoned, sound justification for shutting
down these California agricultural paradises, by denying
them irrigation water, even in the midst of the worst
drought in California in decades?
The result of that has been predictably disastrous for
the human element in these rural farmlands. As the court
recognized in Consolidated Delta Smelt Cases, 717 F.
Supp. 2d 1021 (E.D. Cal. 2010), “The record evidence has
established a variety of adverse impacts to humans and the
human environment from reduced [water deliveries],
including irretrievable resource losses (permanent crops,
fallowed lands, destruction of family and entity farming
business)….” Id. at 1052.
The court added, “It is
undisputed that farm employees and their families have
faced devastating losses due to reductions in the available
water supply.” Id. at 1055.
Columnist Victor Davis Hanson similarly reports the
layoffs of thousands of farmworkers, the idling of hundreds
of thousands of acres of farmlands, and the loss of $350
million each year in state agricultural land revenue. Victor
Davis Hansen, California’s Water Wars, City Journal
(Summer, 2011).
4
These federal policies hostile to California agriculture
were imposed through the United States Fish and Wildlife
Service (FWS), which is the federal agency primarily
responsible for administering the Endangered Species Act.
The agency had found that the survival of a small fish
known as the Delta smelt was threatened by the irrigation
pumps drawing in water for the Central Valley Project, and
the State Water Project, which drew in many of the small
fish as well. 58 Fed. Reg. 12,854 (Mar. 5, 1993). That
finding triggered the protections of the Endangered
Species Act for the Delta smelt. Those protections were the
foundation of the policies restricting the irrigation flow to
the San Joaquin Valley and Central Valley farmlands,
which were based on a Fish and Wildlife Service “biological
opinion” regarding the Delta smelt.
In 2009, Stewart and Jasper Orchards, owners of
almond, pistachio, and walnut orchards in the San Joaquin
Valley, filed suit challenging the biological opinion and
other findings of the Fish and Wildlife Service regarding
the Delta smelt, as well as the resulting water and
irrigation policies. Other growers and local water districts
followed in suits of their own, which were later
consolidated.
The district court below partially invalidated the
biological opinion and other findings of the Fish and
Wildlife Service. The court found that the agency’s own
regulations require it to follow a “reasonable and prudent
alternative” to continued policies that threaten the
protected species, and that alternative must be
“economically feasible.” The court concluded that the FWS
had violated both the Endangered Species Act and the
5
Administrative Procedures Act by failing to explain how its
reasonable and prudent alternative, which included the
irrigation water restrictions, was economically feasible.
App. at B-216 – B-219.
But a Ninth Circuit panel majority reversed the district
court’s judgment, and upheld the FWS.
That was
ultimately based on this Court’s now outdated decision in
Tennessee Valley Authority (TVA) v. Hill, 437 U.S. 153
(1978), which held that under the then Endangered Species
Act (since amended), species protection was the highest
priority, regardless of cost. Id. at 174.
The Ninth Circuit agreed with the FWS that the
Endangered Species Act does not require a discussion of a
proposed alternative’s economic feasibility. App. A-102 – A111. The court reasoned that to consider economic
feasibility broadly would require the FWS to weigh the life
of the Delta smelt against the economic impact of the water
restrictions. The court believed that would be inconsistent
with the Endangered Species Act, which “reflects a
conscious decision by Congress to give endangered species
priority over the ‘primary missions’ of federal agencies,”
and which requires the FWS “to halt and reverse the trend
towards species extinction, whatever the cost,” App. A-109
– A-110 (emphasis added by Ninth Circuit).
Several parties petitioned for rehearing en banc, which
the Ninth Circuit denied on July 23, 2014, without opinion.
SUMMARY OF ARGUMENT
6
This case presents important, crucial questions of
federal law, whether agency interpretation of its own
regulations is entitled to deference, and consequently, in
the present matter, whether the Endangered Species Act
requires the Fish and Wildife Service to consider the
economic impacts of the “reasonable and prudent
alternatives” it mandates in federal law.
The ruling of the Ninth Circuit’s panel majority below
also plunges the Nondelegation Doctrine to new depths,
approving effective delegation of legislative powers, and
judicial powers, to executive branch agencies. So the
agency in this case would have executive, legislative, and
judicial power all combined. The founders recognized that
literally as tyranny. So we should not be surprised that the
agency has used that power to decide that they don’t have
to consider at all the economic effects of what they are
doing.
The ruling of the Ninth Circuit panel majority below
directly conflicts with the decision of the Fourth Circuit in
Dow AgroSciences LLC v. National Marine Fisheries
Service, 707 F.3d 462 (4th Cir. 2013). That creates a split
among the circuits on these issues.
For all of the foregoing reasons, Amicus Curiae
American Civil Rights Union respectfully submits that this
Court should grant the Writ of Certiorari requested in this
case.
7
REASONS FOR GRANTING THE WRIT
I.
THIS CASE PRESENTS AN IMPORTANT,
INDEED MOMENTOUS, QUESTION OF
FEDERAL LAW.
A. The Ruling of the Ninth Circuit Panel Majority
Below Would Constitute Another Enormous
Downhill Slide in the Nondelegation Doctrine.
Whether Congress could delegate broad rulemaking
powers to Executive Branch regulatory agencies at all was
originally highly controversial. That goes back to Locke,
Montesquieu, and the Founding Fathers’ original grounds
for the Constitution’s fundamental doctrine of Separation
of Powers.
Article One, Section 1 of the United States Constitution
states, “All legislative Powers herein granted shall be
vested in a Congress of the United States….” The original
question was whether Congress in granting broad
rulemaking powers to regulatory agencies of the Executive
Branch was, in fact, delegating its own legislative powers.
Panama Refining v. Ryan, 293 U.S. 388 (1935); Schechter
Poulty Corp. v. United States (1935).
Locke explained the problem in 1690:
“The Legislature cannot transfer the Power of
Making Laws to any other hands. For it being but
a delegated Power from the People, they, who have
8
it, cannot pass it over to others. . . . And when the
people have said, We will submit to rules, and be
govern'd by Laws made by such Men, and in such
Forms, no Body else can say other Men shall make
Laws for them; nor can the people be bound by any
Laws but such as are Enacted by those, whom they
have Chosen, and Authorised to make Laws for
them. The power of the Legislature being derived
from the People by a positive voluntary Grant and
Institution, can be no other, than what the positive
Grant conveyed, which being only to make Laws,
and not to make Legislators, the Legislature can
have no power to transfer their Authority of
making laws, and place it in other hands.”
John Locke, Second Treatise of Civil Government
(1690).
Have not those who were concerned about these
questions long ago now been proved right? For today
we are discussing a regulatory agency shutting down
water to some of the most fertile and productive
farmland on the planet, throwing thousands and
thousands out of work and into abject poverty,
consigning
formerly
prosperous,
thriving
communities to the destiny of ghost towns, rendering
carefully cultivated properties for generations of
families into dustbowls.
And they are doing that in the name of the
supposed possible extinction of a variety of sardine
fish for which no one anywhere has any count, whose
survival is supposedly threatened by irrigation pumps
financed by taxpayers for the good of the nation for
generations.
Those suffering today under the
9
depredations of this extremist ideological frolic rightly
do not feel that they are governed by a democracy
where they can hold their representatives
accountable.
But we are not even discussing today whether the
regulatory agency has the Constitutional power to
issue its regulations. We are not even discussing
whether to give the agency deference regarding the
substance of those regulations, as in Chevron.2 We
are discussing whether to give the agency deference
over the interpretation of its regulations.
In other words, we are not even discussing delegation
of legislative power to the agency. We are discussing
delegation of a judicial power as well, interpretation of the
law. So the agency in this case will have executive,
legislative, and judicial power all combined. The founders
recognized that literally as tyranny. So we should not be
surprised that the agency has used that power to decide
that they don’t have to consider at all the economic effects
of what they are doing.
B. The Core Question of Law In This Case Is
Whether Deference Must Be Given to the
Agency’s Interpretation of Its Regulations, and
Consequently Whether It Must Consider the
Economic Effects of Its Regulations Under the
Endangered Species Act.
2
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984)
10
The statutory language of the Endangered Species Act
mandates the Fish and Wildlife Service to require federal
agencies to pursue “reasonable and prudent alternatives”
to their policies to ensure protection for endangered species
under the Act. 16 U.S.C. Section 1536(b)(3)(A). By
regulation, the Fish and Wildlife Service defines
“reasonable and prudent alternatives” to mean, inter alia,
those that are “economically and technologically feasible.”
50 C.F.R. Section 402.02.
But the Service does not interpret “economically
feasible” to include the economic effects of its “reasonable
and prudent alternative.” It interprets economically
feasible to mean only whether the agency subject to the
Service’s reasonable and prudent alternative has the funds
to carry out, or execute, the alternative. But the general
public must comply with the requirements of that
reasonable and prudent alternative, whatever the costs of
the economic effects of that alternative, which the Service
does not interpret “economically feasible” as requiring it to
even consider.
The Ninth Circuit panel majority below simply deferred
without any question to the agency’s interpretation of the
meaning of the words of the regulation at issue. But the
meaning in English of the words “economically feasible”
would appear to refer first and foremost to the cost of the
economic impact on the general economy of the supposed
reasonable and prudent alternative at issue. And agencies
must comply with their own regulations just as much as
with the statutes that authorize those regulations.
11
Indeed, could an interpretation of the statutory words
“reasonable and prudent” holding that those words do not
require the agency to consider the economic effects of its
regulations be considered a valid reading of the statute?
The plain meaning of the words reasonable and prudent
would seem to require not only agency consideration of
economic effects as dire and costly as those in this case,
but, in fact, central agency focus on those effects. How
could the economic effects of the regulatory alternative in
this case be considered “reasonable and prudent”?
This is all the more so given that Congress added the
words “reasonable and prudent” to govern the agency’s
actions specifically to require the agency to avoid such
costly and extreme outcomes of its regulation as in this
case. Pub. L. No. 95-632, Section 3, 92 Stat. 3751, 3752-53
(Nov. 10, 1978); H.R. Conf. Rep. No. 95-1804, at 18-19
(1978). Indeed, Congress appeared to take this action
specifically to rein in the agency after this Court’s decision
in Tennessee Valley Authority (TVA) v. Hill, 437 U.S. 153
(1978), which appeared to approve single minded and
heedless agency regulation under the Endangered Species
Act, whatever the cost, id. at 174.
Finally, judicial deference to an agency’s interpretation
of its own regulations runs afoul of the central
Constitutional Doctrine of Separation of Powers, as
indicated by the discussion above. That would involve
delegating to the agency both the power to write a law, and
to interpret it. That combination would fundamentally
transgress Separation of Powers principles.
12
As Justice Scalia explained in Decker v. Northwest
Environmental Defense Ctr., 133 S. Ct. 1326, 1340
(2013)(dissenting on other grounds), “the power to write a
law and the power to interpret it cannot rest in the same
hands.” Scalia added that such a combination produces
agency aggrandizement of power, for “the power to
prescribe is augmented by the power to interpret; and the
incentive is to speak vaguely and broadly, so as to retain a
‘flexibility’ that will enable ‘clarification’ with retroactive
effect.” Id. at 1341. ACCORD: Decker (Roberts, C.J. and
Alito, J. concurring); Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 525 (Thomas, J., dissenting on other
grounds); Richard A. Anthony, The Supreme Court and the
APA: Sometimes They Just Don’t Get It, 10 Admin. L.J.
Am. U. 1,11 (1996); Matthew C. Stephenson & Miri
Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev.
1449, 1454 – 66 (2011).
Moreover, as discussed above, such a combination
would involve another, enormous, downhill slide in the
nondelegation doctrine, combining delegation of judicial
power with delegation of legislative power to Executive
Branch agencies. That threatens to recreate within
American government the same powers of the British
crown that we fought against 250 years ago. Did George
Washington fight in vain after all? Even the British long
ago freed themselves of such tyranny.
Accordingly, this case presents important, crucial
questions of federal law, whether agency interpretation of
its own regulations is entitled to deference, and
consequently, in the present matter, whether the
Endangered Species Act requires the Service to consider
13
the economic impacts of the “reasonable and prudent
alternatives” it mandates in federal law.
II.
THE RULING OF THE NINTH CIRCUIT
PANEL MAJORITY BELOW CREATES A
SPLIT WITHIN THE CIRCUITS.
The ruling of the Ninth Circuit panel majority below
directly conflicts with the decision of the Fourth Circuit in
Dow AgroSciences LLC v. National Marine Fisheries
Service, 707 F.3d 462 (4th Cir. 2013).
In that case, pesticide manufacturers challenged a
reasonable and prudent alternative because it failed to
consider the economic impacts on their businesses.3 The
Fourth Circuit ruled for the manufacturers, holding that in
deciding on a “reasonable and prudent alternative [under
the Endangered Species Act], the Service must consider
several factors, including ‘economic feasibility.’” Id. at 474
(quoting 50 C.F.R. Section 402.02). That must include the
economic impacts of the reasonable and prudent
alternative, the Fourth Circuit recognized, because
otherwise the economic feasibility requirement would be a
dead letter. See id. at 474-75.
That case involved the Fisheries Service of the Commerce
Dept., rather than the Fish and Wildlife Service of the Interior
Dept., because the Fisheries Service administers the
Endangered Species Act with respect to marine and
anadromous species, which includes the salmon populations at
issue in that case.
3
14
The economic impact of the reasonable and prudent
alternative in that case involved prohibiting spraying of
pesticides within buffer zones of 500 to 1,000 feet
surrounding all salmon-bearing waters. The buffer zones
had a negative economic impact because they would put all
the acreage within the buffer zones out of production for
the pesticide manufacturers. Id. at 475. That is perfectly
analogous to what the reasonable and prudent alternative
has done in the present case to the San Joaquin Valley,
except on a much grander, much more broadly damaging
scale, putting hundreds of thousands of acres out of
production by denying them irrigation water. Consolidated
Delta Smelt Cases, 717 F. Supp. 2d at 1054. Yet, the Ninth
Circuit panel majority held that such an economic impact
is irrelevant to whether an alternative is reasonable and
prudent. App. at A-108 – A-110.
There is consequently a split among the circuits on
these issues, which this Court should resolve in granting
the requested Writ of Certiorari in this case.
CONCLUSION
For all of the foregoing reasons, Amicus Curiae
American Civil Rights Union respectfully submits that this
Court should grant the Writ of Certiorari requested in this
case.
Peter J. Ferrara
Counsel of Record
15
American Civil Rights Union
20594 Woodmere Court
Sterling, VA 20165
703-582-8466
peterferrara@msn.com
Counsel for Amicus Curiae
American Civil Rights Union